Monday, April 6, 2015

Vexatious Dad Can't Collaterally Attack Pre-Filing Order

In re Marriage of Rifkin and Carty, No. A139484 (d1d4 Mar. 6, 2015)

The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.

First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right.  Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list. 

But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” The fact that they were family court proceedings didn’t take him out of the definition.

Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.

Affirmed, even though Mother never filed a respondent’s brief.

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